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Public-Accommodation Laws Must Respect, Not Violate, Free Speech

In June, the U.S. Supreme Court ruled that government officials cannot misuse public-accommodation laws to force people to say something they don’t believe.
Kellie Fiedorek
Lorie Smith, the owner of 303 Creative, stands in front of Colorado's column at the World War II Memorial

By now, you have probably heard about the story of Lorie Smith. Lorie is a graphic artist based in Colorado, and she creates custom websites for her clients through her business, 303 Creative. The state of Colorado tried to force Lorie to say things she doesn’t believe. But Alliance Defending Freedom defended her right to free speech—all the way to the U.S. Supreme Court.

Government officials in Colorado claimed that the state’s public-accommodation law required Lorie to create websites expressing messages about marriage she doesn’t believe. Thankfully, the U.S. Supreme Court rejected Colorado’s attempt to compel Lorie’s speech. In June 2023, the Court ruled in Lorie’s favor and reaffirmed the fundamental right of all Americans to speak freely, choosing which messages they express without fear of government punishment.

The Court’s ruling also made clear that public-accommodation laws remain firmly in place. The government has never needed to compel speech to ensure access to goods and services. This is a win for all Americans as the Court affirmed that disagreement isn’t discrimination and that the government can’t mislabel speech as discrimination in order to compel or censor it. The First Amendment and public-accommodation laws can continue to coexist.

What is the history of public-accommodation laws?

Historically, a public accommodation has been defined in the law to cover entities like inns, taverns, and trains that are open to the public and sell some type of standardized good or service—a hotel room, for example, or a train ticket.

Title II of the Civil Rights Act of 1964 slightly expanded that historical definition to also cover certain restaurants and places of public amusement like movie theaters. According to this law, these places of public accommodation cannot deny basic goods and services to potential customers based on their race, color, religion, or national origin.

Since then, various state and local governments have passed their own public-accommodation laws. While many states correctly apply these laws to help ensure people have access to basic goods and services, Colorado misused its law to force people to say things they don’t believe, violating their First Amendment rights.

How have states correctly applied public-accommodation laws?

Public-accommodation laws are supposed to ensure people have access to basic goods and services. No one should be denied food at a restaurant, a ticket at a movie theater, or a room at a hotel because of their race or religion, for example. Importantly, states can—and many states do—ensure access to goods and services while also ensuring no one is forced to say or celebrate something they don’t believe. 

Let’s look at the state of Arizona as an example. In 2019, the Arizona Supreme Court ruled that the city of Phoenix could not use a public-accommodation ordinance to compel the speech of artists who owned a custom art studio called Brush & Nib.

The studio’s co-owners, Joanna Duka and Breanna Koski, happily served all people. Like artists across the country, they made their decisions on what to create based on the message requested and never the customer requesting. As artists, they wanted their art to express messages consistent with their beliefs. But Phoenix was trying to force them to express ideas contrary to their core values. ADF stepped in to defend Joanna and Breanna’s right to create consistent with their beliefs.

Thankfully, the Arizona Supreme Court ruled that government officials in Arizona can’t misuse public-accommodation laws to force business owners to express messages they disagree with. And in the years since the ruling, the city of Phoenix and state of Arizona have successfully enforced their public-accommodation laws while also protecting Arizonans’ free speech.

This is just one example of how states are ensuring that their public-accommodation laws coexist with the First Amendment.

Where have Colorado and other states gone wrong?

As the U.S. Supreme Court affirmed in 303 Creative, states can’t misuse public-accommodation laws to violate the First Amendment. The government should no more censor Lorie for speaking consistent with her beliefs than it should punish an LGBT graphic designer for speaking consistent with his beliefs. Colorado’s grave (and unconstitutional) error was attempting to use its public-accommodation law to force Lorie to say things she doesn’t believe.

And Colorado isn’t the only state that has attempted to censor certain viewpoints and eliminate them from the public square. Government officials across the country have wrongly mislabeled speech as discrimination in order to regulate it, falsely claiming that forcing people to violate their beliefs is the only way to combat harmful ideas and avoid offense.

The truth? Disagreement isn’t discrimination. And censorship is like a poisonous gas. As cultural and political winds shift, no one escapes it. When we give the government the power to censor one of us, we are giving it the power to censor any of us.

And in every case that ADF litigates to defend free speech for artists, our clients serve everyone, including those who identify as LGBT. As with most artists, their decisions to create always hinge on the message requested, not the person requesting.

This distinction is critical: making a decision based on who someone is versus making a decision based on what particular idea, message, or belief one will express. It is the people’s right to pursue truth and express ideas consistent with their beliefs, which is why the Supreme Court ruled to protect free speech not just for Lorie, but for all Americans.

“[T]he freedom to think and speak is among our inalienable human rights. … By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation,” the Supreme Court wrote in its opinion.

Government censorship deprives us of the opportunity to embrace pluralism and pursue self-government. Respecting free speech is rooted in love of neighbor. And government officials can fulfill their constitutional obligations to uphold free speech while simultaneously ensuring that people don’t suffer discrimination by being denied access to basic goods and services like a burger, a pair of shoes, or a hotel room.

Why the Supreme Court’s decision in 303 Creative matters

At their core, public-accommodation laws are meant to ensure that people have access to the economic marketplace. But Colorado tried to exclude Lorie from this very marketplace because it didn’t like her beliefs. And that’s why the Supreme Court stepped in to stop it.

Government officials in Colorado tried to equate a person’s speech with goods and services like hotel rooms, clothes, and coffee, but they are not the same. Public-accommodation laws were never supposed to compel speech or empower the government to eliminate ideas it dislikes from the public square.

One doesn’t have to agree with one side or the other about an issue to affirm that people have a right to speak freely, consistent with the core of who they are, without government censorship. And if we want freedom, fairness, and equal treatment under the law for ourselves, we must defend free speech for others.

As the Supreme Court clearly articulated in its ruling, public-accommodation laws are not an excuse to ignore the freedom of speech. Many other states have long ensured access to essential goods and services without compelling speech, and now Colorado—and every other state—must do the same.

We will not always agree, but civility and respect for one another are necessary for a peaceful and pluralistic society. The Supreme Court was correct to uphold free speech with its decision in 303 Creative, and every American will benefit from the outcome.

Kellie Fiedorek
Kellie Fiedorek
Senior Counsel, Government Affairs Director
Kellie Fiedorek serves as senior counsel and government affairs director with Alliance Defending Freedom.